ILLINOIS POLLUTION CONTROL BOARD
April
6, 1989
IN THE MATTER OF:
)
PROPOSED SITE SPECIFIC RULE
)
R88—6
CHANGE FOR CITY OF MENDOTA:
)
35
ILL.
ADM. CODE 306.304
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes
before
the Board from a January
15,
1988
petition
for site—specific relief filed
on behalf of the City of
tiendota
(hereinafter “Mendota”).
Mendota seeks regulatory relief
for
five location points
from 35
Ill.
Adm.
Code 306.304 which
prohibits overflow from sanitary sewers.
The following site
specific rule was proposed and published
in the Illinois Register
on April
22, 1988:
SUBPART
C:
COMBINED SEWERS AND TREATMENT PLANT BYPASSES
Section 306.304
Overflows
Overflows from sanitary sewers are expressly prohibitec3~,
with the exception of the following listed overflow points, where
overflows will be allowed when the treatment facilities
of the
sanitary sewer system are operating at 100
of designed maximum
treatment capacity:
—Mendota,
LaSalle
East Sixth Street Bypass,
Overflow Point
002
—Mendota,
LaSalle
East Side Pump Station Bypass, Overflow
Point
003
—Mendota, LaSalle
First Avenue and Ninth Street Bypass,
Overflow Point
004
—Mendota,
LaSalle
Oak Court Siphon,
Overflow Point
005
—Mendota,
LaSalle
Excess Flow Holding Lagoon Bypass,
Overflow Point 006 and 007
(SOURCE:
Amended
at
Ill.
Reg.
effective
_______________
In its comments
of June
20,
1988,
the Agency questioned
whether
the proposed language for
the rule was appropriate.
The
Agency questioned
the use of
the term “combined sewer overflow”
when the sewer system that is the subject of the proceeding was
98-447
—2—
designed
as
a sanitary sewer
system.
The Agency also recommends
that the rule should
be prepared for Subpart
F: Site Specific
Rules and Exceptions Section 306.502 instead of Section
306.304.
The Agency further suggested that the City of Mendota’s
proposal should not have been accepted by the Board
or
that the
Board should have required Mendota
to propose language of its
own.
There
is merit to the Agency’s contention that the system
that
is the subject of
this rulemaking
is
a sanitary sewer system
and not a combined sewer system.
In Section 301.255 of the
Board’s regulations,
combined sewer
is defined
as
“a sewer
designed and constructed to receive both wastewater and land
runoff.t’
In the proceeding in RBl—17, Review of Existing
Regulations,
35
Ill.
Adrn. Code 306.103, the Agency recommended
that the definition of Sanitary Sewer
be amended
to allow
sanitary sewers to be classified
as combined sewers
in systems
where deterioration had resulted in numerous access points
for
storm and groundwater.
Unfortunately,
no definitional changes
were ever proposed and the change has not been made,
R81—17
In
the Matter of:
Review of Existing Regulations,
35
Ill.
Adm.
Code
306.103, Second Notice, December
2,
1982.
Nor has there been any
action
to amend
the definition of combined sewer
in the
regulations.
In this matter
it was not clear whether
the system
was designed as
a combined sewer or
as
a sanitary sewer system.
However, the petition filed did indicate that the system did
operate
as
a combined sewer
system.
Consequently the Board
proposed language
to amend Section 306.304.
The Board’s intention
in drafting the proposal was to
develop
a basis
for
comment at hearing.
The Board rejected the
Agency’s recommendation that
the proposal
be dismissed without
prejudice because the Board viewed the hearing
as the best
forum
at which
to clarify what type
of sewer
system existed
in ?lendota
and the way
to gather information necessary
to develop a complete
and adequate proposal.
If necessary,
either the Heating Officer
or
the Board could have requested that the petitioner draft
appropriate language prior
to
the proposal going
to second
notice.
Hearing was held on this matter
on August
5,
1988
in
Mendota,
LaSaile County.
At
the hearing, six persons were
called
to testify and were examined by representatives
of Mendota,
the
Illinois Environmental Protection Agency
(hereinafter
“Agency”)
and the Department
of Energy and Natural Resources
(hereinafter
“DENR”).
Two other members
of the general public were
also
present.
The Petitioner
filed
its post—heating brief on November
3,
1988.
The ~gency
filed
its Final Comments
in this matter on
January
3,
1989.
On March
10,
1988,
DENR filed
a negative
declaration stating
its determination that the preparation of
a
formal economic impact study was not necessary
in this
proceeding.
The negative declaration was based on DENR’s finding
that the record contains sufficient information
for the Board to
make
a reasoned determination.
Thus,
DENR found
that the cost of
98—148
—3—
making a formal study is economically unreasonable
in relation
to
the value of the study
to the Board.
On April
18,
1988 the Board
received notification that the Economic and Technical Advisory
Committee concurred in DENP’s negative declaration.
BACKGROUND
Mendota was given a prior variance
from
35
Ill.
Adm.
Code
306.304 by the Board on June 30,
1983.
That variance expired
on
September
30,
1984, and
no effort was made by Mendota to extend
or renew
the earlier variance.
On December
10,
1985, Menc3ota
filed for
a variance
for two years
so that
it could continue to
operate various bypasses.
The Board denied
the requested
variance
in its opinion and order of July
11, 1986
in PCB 85—
182.
At hearing
the record from these variance requests were
incorporated into this proceeding.
(P.
at
~).
Since
the record from PCB 85—182
is incorporated
into this
proceeding,
the Board
finds
it useful to reiterate some of
its
earlier findings:
Mendota owns and operates
a wastewater treatment plant and
sanitary sewer system which serve approximately 7,000 persons.
The plant discharges
to Mendota Creek, which
flows
into the
Little Vermillion River.
The plant has a design maximum flow of
2.8 mgd,
and can provide tertiary treatment for
1.8 mgd.
Two
excess flow lagoons
are also located at the plant.
Excess flows
to the plant are bypassed
to the “west” lagoon,
then to the
“east” lagoon.
The effluent from the ponds discharges
to the
Little Vermillion Rivet
(without chlorination)
and average
20
mg/l
of five day biochemical oxygen demand
(“BOD5t’)
and total
suspended solids
(“TSS”).
The effluent rarely exceeds
30 mg/I
for either parameter.
Mendota upgraded its system
in 1977
for the intended purpose
of reducing infiltration
and eliminating sewage bypassing.
Bypassing continues
to occur, however,
at seven locations.
Mendota contends that
the engineering firm utilized by petitioner
for the prior project severely underestimated
the volume of
infiltration
into the system
(R.
at
18).
More specifically, Mr.
G. Richard Spencer,
one of Mendota’s engineers,
testified that
his calculations show that for
a five—year storm,
11,389,000
gallons per day are delivered
to the plant.
The prior engineers
estimated
the expected flow to
the plant during
a five—year storm
to be
5.3 rngd,
and allegedly made inadequate modifications to the
system based
on that estimate.
Petitioner
alleges that without
the bypasses operating,
sewage backs up into the basements
of
approximately 75 residences eight
to ten times per year during
precipitatIon events
(P.
at 88—90).
Bypasses occur
at seven locations
in Mendota’s
system.
Outfall
001
is located
at the sewage treatment plant and
discharges
to Mendota Creek.
Outfall
002
is located at East
Sixth Street
in the city,
and
is an automatic bypass which
98—149
—4—
discharges directly to the Little Vermillion River.
Outfall
003
is a manually operated bypass located
at the east pump station,
and
it also discharges directly to the Little Vermillion River.
Outfall 004
is a gravity discharge located at First Avenue and
Ninth
Street,
and
discharges
to
First
Avenue
Creek,
a
small
tributary
to
the
Little
Vermillion
River.
Outfall
005
is
another
gravity
discharge
and
is
located
at
Oak
Court.
It
discharges
to
Mendota Creek.
Outfall 006
is a 12—inch pipe which extends from
the east lagoon to the Little Vermillion River.
Outfall
007
is
a
bypass discharge that occurs
to the Little Vermillion River
as
a
consequence of flow across
the top of
the dikes located at the
west lagoon.
In PCB 85—182, Mendota indicated several changes
it has made
or
intended
to make
to
its systems.
These
improvements were
expected
to effect
a slight improvement
in the operation of
the
system,
but were not expected
to either eliminate the perceived
need for the bypasses
or
reduce
the magnitude of
the bypasses
in
a significant way.
Mendota installed
a recirculation line from
its east lagoon to the tertiary treatment facility to enable
the
lagoon
to handle higher volumes
in wet conditions.
A motorized
gate valve was installed at the head
of
the plant
to control
flows
into the plant when an operator
is not on duty.
At hearing,
the petitioner highlighted other work they had
been doing
to improve the system.
The City used dye and smoke
to
determine where
the storm sewers were running into the sanitary
sewers and made corrections
to the system
to eliminate the
bypasses that were detected.
(P.
at 15—18).
Mendota also
recently passed
an ordinance requiring downspouts that drain into
the city sewer system to be permanently blocked
(P.
20).
The
city
is also repairing leaking manholes and relining sewers
to
prevent infiltration of surface water
(P.
20—21).
Mendota
is
also repairing broken tiles
in
its storm
sewer-s and catch basins
(IL
127—128).
Mendota plans on continuing these efforts
to find
other sources
of
infiltration
(R.
130).
However, Mendota does
not expect that the elimination of
these ascertainable sources
will eliminate the need to bypass
(P.
110).
Mendota has commissioned an engineering study
by the
consulting firm of Daily and Associates, Engineers,
Inc.
The
study proposes
a $1.6 million plan
to upgrade the system.
This
upgrade would
reduce
the number
of bypasses
to two or
three
a
year.
To eliminate bypassing entirely, Mendota maintains that
the sewer system would need
to be completely replaced,
at
a cost
in excess
of $14 million
(P.
49—51).
TECHNICP~LFEASIBILITY 1~NDECONOMIC
RET~SONABLENE5S
Among
the factors considered by
the Board in reviewing
a
request for
a site—specific rule
is whether
compliance with
the
general rule
is
technically feasible
or- economically
reasonable.
Central Illinois Light Co.
v.
Illinois Pollution
98—150
—5—
Control Board,
511 N.E.
2d
269, 271,
110
Ill.
Dec.
434,
436
(1987), Prooposed Amendments
to 35
Iii.
Adm. Code 212.209,
Village of Winnetka Generating Station, P86—41
(November
3,
1988).
Based on the engineering study presented by Meridota,
it
does not claim that compliance with the general rule is not
technically feasible.
The study detailed
a plan by which Mendota
could come into compliance.
Therefore,
technical feasibility
is
not at issue
in this proceeding.
Mendota bases
its argument
for site—specific relief on the
economic reasonableness of eliminating
the bypasses.
Mendota
argues
that the expenditure
of $14 million by
a city the size of
Mendota
to eliminate bypasses is totally unreasonable.
Mendota
also relies
on the Stream Assimilation Study conducted by Daily
and Associates to argue
that the bypassing has no detrimental
environmental
impact,
and
in fact,
the Little Vermillion and its
tributaries downstream of the City
of Mendota exhibit water
quality standards equal to or better
than upstream.
At hearing, Mr. Spencer
testified that the stream
assimilation study indicates that
the bypasses do not degrade
the
general water quality of
the stream and that the elimination of
bypasses would not guarantee an improvement in the water quality
of
the stream (R.
54).
The study points out that there are
a
number
of large sources of pollution to the stream and the
bypasses are probably small
in comparison
to the total discharge
to the stream
(IL
54).
Mr.
Spencer noted
that the study showed
no
significant changes
in water quality upstream to downstream of
the bypasses
(B.
55).
He also noted that the water quality was
not good either upstream or downstream as
is typical
for rural
streams.
The study indicates that the Little Vermillion has
consistently met present water standards
for dissolved oxygen,
Ph,
and ammonia level downstream of
the Mendota
sewer-age
treatment plant
(T.
94).
Michael Wasmer testified as
to the financial condition of
Mendota.
Mr.
Wasrner stated that the Sewer Department of the City
of Mendota has continued
to have net operating losses
and has an
anticipated operating loss
of $14,400 for
the fiscal year
1987—
1988
(P.
35).
Mr. Wasmer further testified that the
financial
condition of Mendota
is essentially the same as
it was when the
city requested a variance
in PCB 85—182
(P.
34).
At that time,
Mendota had the fifth highest tax rate
in LaSalle County while
ranking 34th among
37 LaSalle County communities on the basis of
per capita
income.
Mendota’s sewer
rates exceeded the average of
a surveyed group of
36 Illinois communities.
Further,
in 1985
Mendota anticipated ~ budget deficit over
the next three
to four
years.
In the proceeding,
Mendota was chataterized as
an elderly
community
of dwindling population
(T.
157).
Based on this information, Mendota argues that forcing
the
closing of the bypasses and causing
the backup of sewage into
hundreds of homes is totally unreasonable as
is
the suggestion
that Mendota spend $14 million to eliminate
the bypassing.
The
98—151
—6—
petitioner
maintains it
is economically unreasonable
to expect
the city to spend the money when its evidence shows
that the
bypasses are
in no way decreasing
the water quality downstream of
the bypass and no one has produced evidence that Mendota’s
bypasses are having an adverse environmental impact.
In
its comments of January
5,
1989 the Agency stated its
opposition
to Mendota’s request for site—specific relief.
The
Agency reiterated
its position that Mendota’s failure to submit
flow data
for
any of
the discharge points
or other
information
necessary to estimate the environmental impact
of the
overflows.
The Agency also notes
the insufficiency of
information
of compliance alternatives,
information on BOD and
TSS analyses and detailed information on discharges,
overflows
and rainfalls.
The Agency believes that Mendota has failed to show that the
requested
relief would not have
an adverse environmental
impact.
The Agency pointed out that while Mendota presented
testimony that its overflows and bypasses cause
no negative
environmental impact,
the city does not routinely inspect the
stream for deposits or debris
(P.
135).
The Agency opposes the
allowing of discharges into waterways that are of poor water
quality because such discharges are not consistent with the
restoration and enhancement principles
of Section 11(b)
of the
Environmental Protection Act.
The Agency recommends that Mendota
continue its recent efforts
to find infiltration and inflow
sources
in lieu of site—specific relief.
The Board agrees with
the Agency’s assessment of
the
situation.
Before the Board will make a determination on the
economic reasonableness of
a proposal,
it must be convinced that
other
alternative compliance plans have been evaluated and that
it
is considering
the best mode
of compliance.
In this matter,
the petitioner
has failed to discuss alternative plans
that were
investigated and the Board
is unpersuaded
that the proposed plan
is
the only viable alternate.
The Board applauds the recent
efforts
of the city to find and eliminate sources of
infiltration
and inflow and encourages
the city
to continue these efforts.
However,
the preliminary nature of
these efforts illustrates the
amount
of work that Mendota must perform before establishing
a
need
for site—specific relief.
The petitioner
has stated that eliminating
infiltration
alone will not eliminate the requirement
for bypassing.
The
Board cannot understand how Mendota and its engineers can be
convinced
of this fact
if the city does not have adequate records
indicating the location of storm sewers
and cross connections
between
sanitary
and
storm
sewers.
This
information
is
necessary
to
formulate
a
plan
for
reducing
infiltration
and
inflow.
The
Board
also
is
not
convinced
that
Mendota
has
sufficiently investigated alternative compliance plans.
There
is
no indication that Mendota has investigated redirecting
the
9
3--Li
52
—7—
bypass and overflow away from the Little Vermillion River
to
holding ponds.
At hearing,
the mayor
of the city stated that
they had not investigated the treatment plant
at the Del Monte
facility in town to see
if they could use any of Del Monte’s
treatment techniques at the Mendota facility
(R.
170).
This type
of investigation would seem
to be advantageous
to determining
if
the best mode
of compliance
is being pursued.
CONCLUSION
In this matter,
the Board will not provide relief from full
compliance until
it has been presented with comprehensive
alternatives.
The Board cannot address
the economical
reasonableness question until
the available alternatives are
fully analyzed.
Further,
if the Board were to allow the site—
specific rule before
the city has depleted its opportunities to
eliminate
infiltration and
investigate
other-
compliance plans,
Mendota would lose
its incentive
to pursue these options and
the
potential
for environmental improvement would be forfeited.
For
these
reasons the Boad cannot endorse site—specific relief
for
Mendota.
For the reasons stated
above,
the Board finds
that
it
is
technically feasible for the City
of Mendota
to comply with the
general
rule.
Further,
the City of Mendota has failed
to show
that there are no economically reasonable means
to comply with
the rule.
Therefore,
the City of Mendota’s petition for
a site—
specific rule to relieve them from the requirements of 35
Ill.
Adm.
Code 306.304
is denied.
ORDER
The petition
for site—specific rulemaking filed by the City
of Mendota on January 15,
1988
is hereby dismissed.
Section
41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1987,
ch.
1111/2,
par.
1041, provides
for appeal
of final
Orders
of the Board within
35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
98—153
—8—
I, Dorothy M Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that the above Opin
n a~dOrder was
adopted on the
c~~-’
day
of
_______________________
1989, by
a vote of
7—c.’
.
Dorothy M. Gui,
Clerk,
Illinois Poll tion Control Board
98— 154